Dennis Robinson v R
| Jurisdiction | Bermuda |
| Judgment Date | 19 June 2009 |
| Date | 19 June 2009 |
| Docket Number | Criminal Appeal 2006 No. 4 |
| Court | Court of Appeal (Bermuda) |
In The Court of Appeal for Bermuda
Before: Zacca, P; Nazareth, JA; Evans, JA
Criminal Appeal 2006 No. 4
Mr J Perry, QC and Mr C Richardson for the Appellant
Ms C Clarke and Ms P Tyndale for the Respondent
BoweUNK [2006] UKPC 10
Ex parte Doody [1994] 1 ADC 531
R (Anderson) v Secretary of State for the Home DepartmentUNK [2002] UKHL 46
Stafford v United KingdomHRC (2002) 35 EHRR 32
R v Sullivan [20044] EWCA Crim 1762
Liyanage v RELR [1967] 1 AC 259
Deaton v Attorney-General and the Revenue CommissionersIR [1963] IR 170
Murder - Appeal against sentence - Life sentence with no parole until after 15 years - Jurisdiction of the court --Constitutionality and interpretation of legislation
On 28 November 2008 we allowed Robinson's appeal against sentence and replaced the fifteen-year statutory restraint upon application or grant of parole with a recommendation that neither should be allowed prior to at least twelve years being served.
We now give our reasons.
Robinson's appeal against sentence raised the following issues:
1. The jurisdiction of this court to entertain the appeal against sentence.
2. The interpretation of section 288(1) of the Criminal Code (the Code), and the constitutionality of its effect.
1. The respondent's submission, which precipitated this issue, is that the sentence being plainly fixed by law the court would not have jurisdiction to entertain the appeal. The submission is based upon the combined effect of section 17 (1)(c) of the Court of Appeal Act 1960 and section 288(1) of the code which read:
Right of appeal
17(1)(c)
"A person convicted of summary judgement and whose appeal to the Supreme Court….has not been allowed may appeal to the Court of Appeal -
(c) with the leave of the Court against sentence passed on his conviction unless the sentence is fixed by law" (emphasis added)
Punishment of murder
288 (1) Any person who commits the offence of murder shall be sentenced to imprisonment for life:
Provided that where any person is sentenced under this section, such person shall, before any application for his release on licence may be entertained or granted by the Parole Board established by the Parole Board Act 2001, serve at least fifteen years of the term of his imprisonment.
2. The appellant's submission is that the combined effect of relevant statutory human rights and constitutional provisions entitles him to seek appropriate remedies in respect of his sentence.
The Bermuda Constitution (the Constitution), unlike those of many of the Caribbean independent states of the Commonwealth, does not declare that the Constitution is the supreme law of Bermuda; but that position is achieved by the Bermuda Constitution 1967, which by Order-in-Council applied the Bermuda Constitution to Bermuda, in conjunction with the Colonial Laws Validity Act 1865, which provides by Section 2:
Colonial Laws, when void for repugnancy
2 Any colonial law which is or shall be in any respect repugnant to the provisions of an Act of Parliament extending to the Colony which such law may relate or repugnant to any order or regulation made on the authority of such Act of Parliament or having in the Colony the force and effect of such Act shall be read subject to such Act order or regulation and shall, to the extent of such repugnancy but not otherwise, be and remain absolutely void and inoperative.
Thus, as submitted, the effect of Section 2 of the Act of 1865 is that any law passed in Bermuda will be void to the extent of any inconsistency with the Bermuda Constitution.
3. The appellant relies upon the following rights and freedoms in Chapter 1 of the Constitution:
Section1(a)
The right to "…liberty, security of the person and the protection of the law.
Section 3(1)
The right that "No person shall be subjected to torture or to inhuman or degrading treatment or punishment
Section 5 (1)(a)
The right that "No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases:-
(a) in execution of the sentence or order of a court…. in respect of a criminal offence of which he has been convicted
As mentioned, reliance is also placed upon Section 15, also in Chapter 1:
Enforcement of fundamental rights
15 (1) If any person alleges that any of the foregoing provisions of this Chapter has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress
(2) The Supreme Court shall have original jurisdiction -
(a) to hear and determine any application made by any person in pursuance of subsection (1) of this section; and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3) of this section.
and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the foregoing provisions of this Chapter to the protection of which the person concerned is entitled:
Provided that the Supreme Court shall not exercise its powers under this subsection if it...
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